August 29, 2014

Travis County District Attorney Rosemary Lehmberg

ATTN: Public Integrity Unit
509 W. 11th St.
Austin, TX 78701
By FedEx

RE: Illegal coercion by Senator John Whitmire

Dear District Attorney Lehmberg:

I write on behalf of the Conservative Action Fund (CAF), an organization dedicated to
preserving fundamental principles of limited, constitutional government, including the separation
of powers. Like scores of observers nationwide of all political stripes, CAF is deeply troubled by
the indictment of Governor Rick Perry, apparently for the mere exercise of his constitutional
veto authority as the Governor of Texas. Governor Perrys actions were entirely ethical and
appropriate, and the criminal statute under which he is being prosecuted is blatantly
unconstitutional. We hope and expect that Governor Perrys constitutional challenges to the
prosecution will be successful.

Despite its glaring constitutional problems, acting under the auspices of the Public
Integrity Unit (PIU) of the Travis County DAs office, Special Prosecutor Michael McCrum
initiated this prosecution of the Governor. If your office is intent on prosecuting Governor Perry
for exercising his lawful legislative authority (the veto) to encourage action by another public
servant (Lehmberg), then we suppose that you would be troubled to know of two publicly
documented violations of the same criminal statute by a powerful Texas Democrat. Senator John
Whitmire, the most senior member of the Texas Senate, who has represented District 15 in the
Houston area since 1983, recently flexed his legislative authority in order to coerce a specific
action from public servants at the University of Houston. While we do not believe that Senator
Whitmire should be prosecuted any more than should Governor Perry, Senator Whitmires
actions squarely implicate the very same provision upon which the prosecution of Perry is based.

I. Elements of the indictment against Governor Perry
Count II of the indictment against the Governor (coercion of a public servant) is
premised on article 36.03 of the Texas Penal Code. That article provides in relevant part that
[a] person commits an offense if by means of coercion heinfluences or attempts to influence a
public servant in a specific exercise of his official power or a specific performance of his official
Najvar Law Firm

Page 2 of 6

duty. Tex. Pen. Code art. 36.03 (West 2013) (emphasis added).
1
As defined in the Penal Code,
coercion is not limited, as one would naturally expect, to threats of unlawful or unethical
action. Instead, coercion means, in relevant part, a threat, however communicated[,] to take
or withhold action as a public servant, or to cause a public servant to take or withhold action.
Tex. Pen. Code 1.07(9)(F) (West 2013). So a public official in Texas apparently risks criminal
prosecution simply by threat[ening] to exercise his lawful authority to achieve a policy
objective.

According to count II of Mr. McCrums indictment, Governor Perry violated article
36.03 by threatening to veto legislationto provide funding for the continued operation of the
Public Integrity Unit of the Travis County [DA]s Office unless Travis County [DA] Rosemary
Lehmberg resigned from her official position as elected [DA]. This was a criminal act, the
indictment alleges, because Perrys veto threat was an attempt to intentionally or knowingly
influence[] or attempt[] to influence Rosemary Lehmberg, a public servantin the specific
performance of her official duty, to wit: the duty to continue to carry out her responsibilities as
the elected [DA] for the County of Travis.

II. Criminal coercion perpetrated by Senator John Whitmire
If Governor Perrys actions can give rise to a felony prosecution, then Senator
Whitmires threats against the leaders of the University of Houston this month, and his coercion
of the Texas Department of Criminal Justice in 2011, are equally criminal.

A. Whitmire coerces University of Houston President Renu Khator
The Houston Chronicle ran a story August 19, 2014, under the following headline: UH
president, under pressure from senator, kills on-campus living requirement. See Benjamin
Wermund, UH president, under pressure from senator, kills on-campus living requirement,
HOUSTON CHRON., Aug. 19, 2014, attached as Exhibit B. The Chronicle explains that on Friday,
August 15, the University of Houston issued a news release announcing the University would
require freshmen to live on campus beginning in the fall of 2015. As of August 15, the plan
seemed set. However, that changed fast once Senator Whitmire learned of the plan, apparently
by reading about it in the media. The Chronicle obtained text messages between Whitmire and
UH President Renu Khator from Saturday, August 16. The following are excerpts from the
conversation:

Whitmire: Sounds like we need to talk. I think you have overstepped on this one.
Expect lots of push back.

Khator: Waiver is for anyone who gives any reason at allany reason including
financial, religious, family. Eleven other universities in Texas (not UT and A&M)
are successfully using them. Students are fully supportive.

Whitmire: You and somebody did not think this through.


1
A copy of article 36.03 is attached hereto as Exhibit A.
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Page 3 of 6

Khator: It is on board agenda. Has not been done yet. Will think more so we do
the right thing.

Whitmire: I would like to know who came up with this. I will stop dead and pass
leg if I need to.

Khator: I am sorry to have disappointed you.

Whitmire rebukes UH president via texts for proposed freshman living requirement, HOUSTON
CHRON., Aug. 19, 2014, attached as Exhibit C.

The Chronicle reports that Whitmire and Khator spoke by phone, and then the text
messages resumed:

Khator: Are you still upset? The issue was going only as information/option to
board and I have already killed any further consideration on it. Can you please not
forgive? Is there anything I can do to ensure you it is killed from consideration?
You are the best critic/friend I have so I killed it on Saturday myself.



Anyway, it is now killed even from consideration and we will listen and learn.
Thank you.

Id.

These reports reveal that the University of Houston was moving forward to approve a
plan requiring freshmen to live on campus, but immediately killed consideration of the plan as
a direct result of Senator Whitmires threat to stop [it] dead and pass leg[islation] if I need to.
Senator Whitmires threats apparently caused serious concern for the head of the University of
Houston, because after their phone conversation, President Khator still felt the need to follow up
in writing, practically begging the State Senator for forgiveness, and repeatedly assuring him that
she had killed the plan.

As noted above, article 36.03 prohibits influenc[ing] or attempt[ing] to influence a
public servant in a specific exercise of his official power or a specific performance of his official
duty by means of coercion. And again, coercion includes a threat, however
communicatedto take or withhold action as a public servant. Senator Whitmire directly
attempted to influenceand did in fact influencea public servant (the UH President)
2
in a
specific exercise of [her] official power. He achieved such influence by means of coercion,

2
Public servant means a person elected, selected, appointed, employed, or otherwise designated as one
of the following: (A) an officer, employee, or agent of government. Tex. Pen. Code art.
1.07(a)(41)(A). As an officer of the University of Houston, a publicly-funded institution of higher
learning, see Tex. Educ. Code 111.01 et seq., Renu Khator is a public servant within the meaning of
the penal code. See, e.g., Smith v. State, 959 S.W.2d 1, 7 (Tex. App.Waco 1997, pet. refd) (Texas
A&M University Vice-President for Finance and Administration was a public servant under the penal
code); Brown v. State, No. 13-05-711-CR, 2007 WL 2012902 (Tex. App.Corpus Christi Jul. 12, 2007)
(affirming conviction of University of Houston employee for theft by a public servant).
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Page 4 of 6

that is, by threatening to takeaction as a public servant in the Legislature if UH did not bow
to his demand.

Indeed, it would appear that Senator Whitmires conduct provides an even stronger basis
for prosecution than does the Governors. The statute prohibits coercing a public servant in a
specific exercise of his official power or a specific performance of his official duty. Tex. Pen.
Code art. 36.03(a)(1) (emphasis added). Even aside from the statutes constitutional infirmities,
Perrys alleged demand that Lehmberg resign her post entirely arguably does not constitute
coercion of a specific exercise of her authority (such as, for example, changing the DAs
policy on a specific topic, or handling a specific case according to the Governors demand). By
contrast, Senator Whitmire clearly coerced the UH President as to a specific exercise of [her]
official powerkilling the proposed campus residency requirement.

Just as the Governor possesses constitutional authority to veto appropriations,
3
state
legislators like Senator Whitmire possess the authority to initiate and vote on legislation. Under
the theory of the indictment, if Governor Perry committed a crime by threatening to exercise his
veto power unless Lehmberg resigned, then Senator Whitmire committed a crime by threatening
to pass legislation unless UH killed its proposed residency policy.

But that is not all. If such actions are criminal in Texas, then Senator Whitmire must be
prosecuted as a repeat offender.

B. Senator Whitmire coerces Executive Director of TDCJ.
In 2011, Senator Whitmire was incensed at the Texas Department of Criminal Justices
(TDCJ) policy of entertaining last meal requests from death row inmates after a particularly
egregious abuse of the policy by inmate Lawrence Russell Brewer. The New York Times
reported that [i]n a phone call and letter to the executive director of the state prison agency, Mr.
Whitmire asked that the agency end the practice of last meals or he would get the State
Legislature to pass a bill doing so. Manny Fernandez, Texas Death Row Kitchen Cooks its Last
Last Meal, N.Y. TIMES, Sept. 23, 2011, at A17, attached as Exhibit D. Senator Whitmire
actually memorialized the smoking gun evidence you will need for prosecution of this earlier
violation of article 36.03, because he made the threat by means of a letter on official Senate
letterhead. In correspondence dated September 22, 2011 and addressed to Brad Livingston,
Executive Director of the TDCJ, Senator Whitmire wrote that he ha[s] yielded to TDCJ
judgment in the past, but now enough is enoughI am asking that you end this practice
immediately or I am prepared to do so by statute next session. See Exhibit E. The New
York Times reported that merely hours after Whitmires threats, TDCJ terminated the practice.

***
As indicated in my introduction, Conservative Action Fund believes article 36.03(a)(1) is
plainly unconstitutional and unenforceable. Your offices prosecution of Governor Perry for
transparently exercising his constitutional veto authority threatens to eviscerate the separation of
powers, a bedrock principle of American constitutional government.
4


3
TEX. CONST. art. IV, 14.
4
Aside from that, common sense dictates that the public would be disserved if a Governor felt he must
silently issue vetoes without prior warning simply to avoid a threat of criminal prosecution.
Najvar Law Firm

Page 5 of 6


The constitutional injury is compounded further, however, when a dangerous and
unconstitutional statute is enforced along partisan lines. Your investigation of Governor Perry
was prompted by a complaint filed by Craig McDonald of Texans for Public Justice, a partisan
liberal enterprise whose name takes on an Orwellian character when one considers that it exists
for the purpose of suppressing free political speech and activity of conservatives while
simultaneously defending its own practice of refusing to disclose its donors.
5
Faced with
nationwide blowback from even liberal critics such as the New York Times editorial board,
McDonald took to Politico Magazine in an attempt to defend his complaint. He began by
assuring critics that upon reading in an Austin newspaper of the Governors threat to veto Public
Integrity funding, he knewthen and therethat Texass longest-serving governor had broken
the law. He then explains that Texans for Public Justice

filed our criminal complaint before Perry vetoed Public Integrity funding. After
all, it was the governors threatsnot his vetothat broke Texas law prohibiting
an official from using the power of his or her office to coerce another official into
taking an action, such as resignation.

Craig McDonald & Andrew Wheat, Why liberal pundits are wrong about the Perry indictment,
POLITICO MAGAZINE, Aug. 21, 2014.
6


Apparently, Mr. McDonald and his liberal group did not read the stories about Senator
Whitmires 2011 threat, although it was reported widely, even garnering attention in The New
York Times. And maybe Texans for Public Justice have not yet had time to digest the multiple
prominent stories by the Houston Chronicle recounting Senator Whitmires (very effective)
coercion of UH President Renu Khator this month.

While the political crimes of Senator Whitmire may have escaped the notice of our
mutual trustees at Texans for Public Justice, your office is now aware of two publicly
documented instances of the coercion of a public servant by a well-known and powerful
Democrat.


5
We do not disclose the identities of our individual donors, McDonald said. Because we often
challenge the powerful, we do not want to subject our supporters to the retaliation or intimidation that we
face and this past week of hate mail, threats and intimidation justifies that policy. Tim Eaton, Group
that brought Rick Perry complaint has focused on Republicans, AUSTIN AMERICAN-STATESMAN, Aug.
23, 2014. We are pleased Mr. McDonald agrees with us that there are limits to the governments power
to require disclosure of nonprofit donors.
6
Available at http://www.politico.com/magazine/story/2014/08/rick-perry-indictment-liberals-
110229.html#ixzz3BkeednZr.

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Page 6 of 6

In light of these very serious (even Perry-esque?) transgressions, I am afraid that if your
office refuses to investigate and prosecute Whitmire, your prosecution of Perry for the same
crime will appear to be just as partisan as the selective complaints filed by Texans for Public
Justice. Neither the Travis County DAs Office, nor the Public Integrity Unit, can afford to bear
any further damage to its credibility. It seems your only options are to mete out unconstitutional
justice on a nonpartisan basis orbetter yetacknowledge the serious legal and public policy
problems with this statute, and halt the prosecution of Governor Perry. The people of Texas are
well-served by a Governor who explains the circumstances under which he will veto legislation
beforehand.

Very respectfully,


Jerad Najvar

Encl.

cc:
The Hon. John Whitmire
Special Prosecutor Michael McCrum
Anthony G. Buzbee, THE BUZBEE LAW FIRM
Thomas R. Phillips, BAKER BOTTS LLP
David L. Botsford, BOTSFORD & ROARK
Craig McDonald, Texans for Public Justice
Ross Ramsey, Texas Tribune
Peggy Fikac, San Antonio Express-News
David Saleh Rauf, San Antonio Express News
Jonathan Tilove, Austin American-Statesman
Paul J. Weber and Jim Vertuno, Associated Press


















Exhibit A
36.03. Coercion of Public Servant or Voter, TX PENAL 36.03
2014 Thomson Reuters. No claim to original U.S. Government Works. 1
Vernon's Texas Statutes and Codes Annotated
Penal Code (Refs & Annos)
Title 8. Offenses Against Public Administration
Chapter 36. Bribery and Corrupt Influence (Refs & Annos)
V.T.C.A., Penal Code 36.03
36.03. Coercion of Public Servant or Voter
Currentness
(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance
of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event
it is a felony of the third degree.
(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence
the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to
influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection,
the term official action includes deliberations by the governing body of a governmental entity.
Credits
Acts 1973, 63rd Leg., p. 883, ch. 399, 1, eff. Jan. 1, 1974. Amended by Acts 1989, 71st Leg., ch. 67, 1, 3, eff. Sept. 1,
1989; Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.
Notes of Decisions (12)
V. T. C. A., Penal Code 36.03, TX PENAL 36.03
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.

















Exhibit B
8/23/2014 UH president, under pressure from senator, kills on-campus living requirement - Houston Chronicle
http://www.houstonchronicle.com/news/education/article/UH-president-under-pressure-from-senator-kills-5699012.php 1/3
EDUCATION
UH president, under pressure from senator, kills on-
campus living requirement
By Benjamin Wermund
August 19, 2014 | Updated: August 21, 2014 8:59pm
After a lengthy exchange with an angry state senator on Saturday, University of Houston Chancellor and
President Renu Khator killed a plan to require most freshmen to live on campus, according to text messages
the Houston Chronicle obtained Tuesday.
In the exchange with Sen. John Whitmire, Khator went from defending the plan to assuring the Houston
Democrat she had ordered a halt to it.
"I have already killed any further consideration on
it," Khator said in one message after Whitmire had
denounced the idea as insensitive to student needs
and UH history. "Can you please forgive?"
In making the proposal, administrators had pointed
to data that showed students make better grades,
take more classes and have a better chance of
graduating in four years when they live on campus.
The plan seemed set on Friday, when UH issued a
news release saying freshmen would have to live
on campus starting in the fall of 2015. The release
has been removed from the university's website, where it was posted as recently as Monday.
UH officials confirmed Tuesday that the proposal had been scrapped, but did not comment further.
Back to drawing board
The fallout over the weekend highlights conflicting views of UH's mission as the university strives to become
a top-tier research institution. Khator came to UH six years ago as a transformative figure, drawing
widespread praise for bold leadership. Part of her push has been to make UH a residential institution, rather
8/23/2014 UH president, under pressure from senator, kills on-campus living requirement - Houston Chronicle
http://www.houstonchronicle.com/news/education/article/UH-president-under-pressure-from-senator-kills-5699012.php 2/3
RELATED
than the commuter school it has long been.
But Whitmire, a UH alumnus, warned that the university should not lose sight of its historic role as a place for
working-class students to get a quality education. Living on campus is unaffordable for some students,
Whitmire said.
The conflict played out in the text messages he exchanged with Khator.
"You totally discount people like me that lived in an apartment with my mother and worked," Whitmire told
Khator in one text. "You are very insensitive to UH experience."
Khator said she was sorry and would be "going back to the drawing board."
The UH proposal included exemptions for students who are married or have children, or who live with their
parents within 20 miles of campus. Whitmire told Khator that these exceptions wouldn't include gay students,
described 20 miles as an arbitrary distance, and said the plan would "just run kids away from UH and
start a firestorm." His suggestion: "You need better advisors."
The two eventually had a phone conversation, and Khator texted Whitmire afterward to ask if he was still
upset.
"Is there anything I can do to ensure you it is killed from consideration?" she wrote. "You are the best
critic/friend I have so I killed it on Saturday itself."
Sen. Ellis also opposed
Whitmire was not alone in opposing the plan.
State Sen. Rodney Ellis, a Democrat whose district includes the university, said it's best that the plan was
killed. Ellis said living on campus helped him graduate from Texas Southern University in three years in the
1970s, but acknowledged the cost of college has increased greatly since then.
"I could get behind the idea of encouraging or incentivizing students to live on campus, provided they're able
to afford it, but I don't think it should be a requirement," Ellis said in a statement. "The cost of higher
education is much higher than it was in the '70s, so any policy proposals have to take that into consideration.
With that said, I understand why UH is trying to find new ways to increase graduation and retention rates
now that the Legislature is tying dwindling state funds to a school's graduation rate."
8/23/2014 UH president, under pressure from senator, kills on-campus living requirement - Houston Chronicle
http://www.houstonchronicle.com/news/education/article/UH-president-under-pressure-from-senator-kills-5699012.php 3/3
Read the texts between Khator and Whitmire
2013 Hearst Newspapers, LLC.

















Exhibit C
8/23/2014 Whitmire rebukes UH president via texts for proposed freshman living requirement - Houston Chronicle
http://www.houstonchronicle.com/news/article/Whitmire-rebukes-UH-president-via-texts-for-5699232.php 1/2
US & WORLD
Whitmire rebukes UH president via texts for proposed
freshman living requirement
HOUSTON CHRONICLE
August 19, 2014
Excerpts of text messages exchanged Saturday between University of Houston Chancellor and President
Renu Khator and state Sen. John Whitmire of Houston:
8:45 a.m.
Khator: You will read about UH requiring
freshmen living outside 20-mile radius and not
married to live on campus. Easy waivers to others.
It is to change the culture and create new
expectation. Applies only to full time freshmen.
Darrin (Darrin Hall, UH director of governmental
relations) sent our statement to your office
yesterday.
Whitmire: Sounds like we need to talk. I think
you have overstepped on this one. Expect lots of
push back.
Khator: Waiver is for anyone who gives any reason at all - any reason including financial, religious, family.
Eleven other universities in Texas (not UT and A&M) are successfully using them. Students are fully
supportive.
Whitmire: You and somebody did not think this through.
Khator: It is on board agenda. Has not been done yet. Will think more so we do the right thing.
9:15 a.m.
Whitmire: I would like to know who came up with this. I will stop dead and pass leg if I need to.
8/23/2014 Whitmire rebukes UH president via texts for proposed freshman living requirement - Houston Chronicle
http://www.houstonchronicle.com/news/article/Whitmire-rebukes-UH-president-via-texts-for-5699232.php 2/2
Khator: I am sorry to have disappointed you.
(Whitmire and Khator have a phone conversation, then the texts resume.)
10:05 a.m.
Khator: Are you still upset? The issue was going only as information/option to board and I have already
killed any further consideration on it. Can you please not forgive? Is there anything I can do to ensure you it
is killed from consideration? You are the best critic/friend I have so I killed it on Saturday itself.
Whitmire: Well the (Chronicle) article really set me back. It is so unfounded with lack of realism of the
people I represent and UH serves that I am not going to stop until your administration understands their
mission. Furthermore you totally mishandled presenting this to me and legislators.
10:49 a.m.
Khator: We will learn. Media has misled everyone by portraying it as if it done deal. They love to create
sensation and we were idiots to allow it.
Anyway, it is now killed even from consideration and we will listen and learn. Thank you.
2013 Hearst Newspapers, LLC.

















Exhibit D
8/23/2014 Texas Death Row Kitchen Cooks Its Last Last Meal - NYTimes.com
http://www.nytimes.com/2011/09/23/us/texas-death-row-kitchen-cooks-its-last-last-meal.html?_r=0&pagewanted=print 1/2
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September 22, 2011
Texas Death Row Kitchen Cooks Its Last
Last Meal
By MANNY FERNANDEZ
HOUSTON For decades, Texas inmates scheduled to be executed had at least one thing to
look forward to: a last meal. Earl Carl Heiselbetz Jr. ordered two breaded pork chops and three
scrambled eggs in 2000. Frank Basil McFarland asked for a heaping portion of lettuce and four
celery stalks in 1998. Doyle Skillern ate a sirloin steak in 1985.
But state prison officials decided on Thursday to end the practice of giving last meals to inmates
about to be executed, their decision coming the day after they honored an elaborate meal
request from Lawrence Russell Brewer, one of the men convicted in the 1998 racially motivated
dragging death of James Byrd Jr. in Jasper.
Before Mr. Brewer was executed by lethal injection in the Huntsville Unit on Wednesday, he
was given the last meal of his request: two chicken-fried steaks with gravy and sliced onions; a
triple-patty bacon cheeseburger; a cheese omelet with ground beef, tomatoes, onions, bell
peppers and jalapeos; a bowl of fried okra with ketchup; one pound of barbecued meat with
half a loaf of white bread; three fajitas; a meat-lovers pizza; one pint of Blue Bell Ice Cream; a
slab of peanut-butter fudge with crushed peanuts; and three root beers.
The meal outraged State Senator John Whitmire, a Houston Democrat and chairman of the
Senate Criminal Justice Committee. In a phone call and letter to the executive director of the
state prison agency, Mr. Whitmire asked that the agency end the practice of last meals or he
would get the State Legislature to pass a bill doing so.
The prison agencys executive director, Brad Livingston, responded hours later, telling Mr.
Whitmire that the practice had been terminated, effective immediately, and that death row
inmates scheduled for execution would receive the same meal served to other inmates in the
unit.
I believe Senator Whitmires concerns regarding the practice of allowing death row offenders
to choose their last meal are valid, Mr. Livingston said in a statement.
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8/23/2014 Texas Death Row Kitchen Cooks Its Last Last Meal - NYTimes.com
http://www.nytimes.com/2011/09/23/us/texas-death-row-kitchen-cooks-its-last-last-meal.html?_r=0&pagewanted=print 2/2
Mr. Whitmire said his opposition to last meals had little to do with the cost of the meals, when
the state budget is stretched thin. He said it was a matter of principle. He never gave his
victim an opportunity for a last meal, Mr. Whitmire said of Mr. Brewer. Why in the world are
you going to treat him like a celebrity two hours before you execute him? Its wrong to treat a
vicious murderer in this fashion. Let him eat the same meal on the chow line as the others.
Mr. Brewer did not eat his last meal, and Mr. Whitmire said he felt that the inmate had ordered
it in an attempt to make a mockery out of the process.
Officials with the prison agency, the Texas Department of Criminal Justice, said they did not
have data on how much the last meals cost the state. They said the kitchen staff at the
Huntsville Unit, where executions take place, tried to accommodate inmates requests within
reason, using food in the prison kitchen. The requests are normally made about two weeks
before the scheduled execution.
Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit group
based in Washington, said the decision to do away with last meals seemed petty. If the last
meal process has been abused, then maybe it warrants changing, but there are a lot more
serious abuses that have gone on in terms of lack of due process in Texas, Mr. Dieter said.
Inmates would much prefer a last lawyer to a last meal.

















Exhibit E